Seventeen percent of the world’s gay people had their sex legalized, at least temporarily, by a court ruling in India July 2. However, some gay sex is still illegal, as the ruling only applies to those over 18 who have sex in private.
A two-judge bench of the New Delhi High Court repealed the anti-sodomy sections of Section 377, an anti-sodomy law introduced by British colonialists in 1860. The colonists were alarmed by the sexual freedom of traditional Indian culture.
Chief Justice Ajit Prakash Shah referred to those traditions in his rulings, noting the nation’s Constitution values inclusiveness.
“This court believes that [the] Indian Constitution reflects this value deeply ingrained in Indian society,” he wrote. “Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized. Where society can display inclusiveness and understanding, such pesons can be assured of a life of dignity and non-discrimination.”
Conservative politicians and leaders of the Muslim and Hindu faiths found rare unity in immediately condemning the ruling and calling on the government to appeal it to the nation’s top court. But a cabinet minister in the newly elected Indian National Congress has hinted that the government was thinking of repealing Section 377 even before the judgment. Gay and AIDS activists expressed hope that the High Court ruling will give the government strength in sticking to its plans.
Below are excerpts from the High Court judgment.
The criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs. The number of lesbians and transgenders is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied “moral full citizenship.” Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalizes consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The Indian Constitution – Cornerstone of A Nation”, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India.”
Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people.
The criminalization of private sexual relations between consenting adults absent any evidence of serious harm deems the provision’s objective both arbitrary and unreasonable. The state interest “must be legitimate and relevant” for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalize private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalize conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity.
Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalized and turned in on itself.
The inevitable conclusion is that the discrimination caused to MSM and gay community is unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India.
We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15.
The impugned provision in Section 377 IPC criminalizes the acts of sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review.
In the present case, the two constitutional rights relied upon i.e. ‘right to personal liberty’ and ‘right to equality’ are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not ‘confer’ fundamental human rights. It confirms their existence and accords
129. The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ‘Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.’ [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi:
1999, Vol. I, pages 57-65].
130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result
in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms.